Benesi v Thawe & Anor. (Personal Injury 242 of 2016) [2018] MWHC 767 (23 July 2018)

u1� The Judiciary IN THE HIGH COURT OF MALA WI PRINCIPAL REGISTRY PERSONAL INJURY CAUSE NUMBER 242 OF 2016 MONICA BENESI ...................................................................... CLAIMANT Between ANDREW THA WE ................. 1 ST DEFENDANT .............................................. PRIME INSURANCE COMPANY LIMITED ............................ zNo DEFENDANT -and- CORAM: Austin Jesse Banda, Assistant Registrar Mr. Domasi, for the Claimant Mr. Stenala Chisale, for the Defendants Mr. Mathanda, Clerk/ Official Interpreter Page 1 of 5 Monica Benesi <Assessment Order> Banda, Asst. Reg. v. Andrew Thawe & Prime Insurance Company Limited Personal Injury Cause Number 242 of 2016 Banda, Assistant Registrar ASSESSMENT ORDER Background endorsed commenced disfigurement, judgment, by the parties. The claimant suffering, consent resolved was 70 %, whilst motor vehicle me for assessment parade any witnesses. given due consideration of damages. that of the claimant driven that was negligently this matter against the defendants seeking capacity, damages and special for pain and damages. loss of earnings and earning by the court on 17th November, that the first It was adjudged 2017, the issue of liability defendant's percentage of contribution In a was was 30 %. The second defendant by the first defendant. The parties The claimant They simply made an oral submission as was given to the written in this order, arguments was the only witness. through of the is the insurer before appeared did not The defendants which I have by the claimant. counsel Evidence adopted in the hearing the only witness contributed on, under oath. She said that due to the accident Monica Benesi, with the court earlier first defendant right ribs and left knee. She said that she was taken to Queen Elizabeth her leg was placed a lot of pain that could not ease even with pain killers, on. She said she was able to sleep without the on the of the left foot, bruises where Hospital Central on her for a month. She said that she felt and she was not able to sleep, pain at the time of making her statement. to at 70%, she sustained of Paris which stayed statement in a Plaster a fracture her witness that she had filed until later whose occurrence said that she was no longer The claimant from which she could earn a profit of K2000 to K3000 a day. She said she used to walk in the residential body also provided as she sold vegetables, exercise. able to do her vegetable such that the walking areas of Blantyre business after the accident she told the court that she sustained the broken bones in her foot. She said she bruised In cross examination, alongside she was treated that she was not completely was no longer doing the business a fracture of the shoulder her ribs and a knee. She said that the hospital She also said for check-ups. to walk, and that was the reason why she as she fell, as an outpatient but she was visiting of selling vegetables. fine as it takes her effort Issue The only issue in this matter claimant now is the quantum of the first for the contribution that the defendants must pay the that she sustained. defendant to the injuries of damages Page 2 of 5 Monica Benesi <Assessment Order> Banda, Asst. Reg. v. Andrew Thawe & Prime Insurance Company limited Personal Injury Cause Number 242 of 2016 Analysis of Law and Fact of a tortious must be adequate Every victim damages that the victim and Others [1993) 16(1) fully compensates personal As result, injuries. to achieve cases as a guide, use awards in comparable a particular claimant. 1998, High Court, Principal Registry over the period fall of value of the currency and an instant a non-monetary See Chipeta one-Paulo v. Mwakabanga act is entitled enough to put the victim, The level of by the tortfeasor. the same position as far as money can, in to be compensated would have been had the wrongful act not been done to him-Namwiyo v. Semu MLR 369. It is impossible loss, with mathematical to come up with an amount of money that like is the case with precision, and consistency certainty without v. Dwangwa Sugar Corporation, also take into account (unreported). Courts courts of awards in like cases, by losses Civil Cause No. 345 of the rise or suffered losing sight of specific of time that has passed [1991) 14 MLR 409. between a comparable case Pain and Suffering, and Disfigurement In the instant fractured, Plaster suffering immediately from medical future Litigation, disability, Practice matter, the claimant had a fracture of the metatarsal, and a bruised ribcage knee. She was in a had a painful shoulder, not in my finding from her medical report, of more than a month. She is looking of Paris for a period for damages The word pain connotes for pain and that which is caused from the injuries among others. felt upon the nerves treatment and brain, necessitated be it directly related while suffering to the accident includes fright, by the accident, or resulting humiliation, embarrassment Ian Goldrein et al, Personal and Precedents (Butterworths, and sickness- 1985) p8. fear of Iniury The claimant physical Chingamba disfigurement deformity also prays for damages bodily frame that has been caused by the injuries for disfigurement. Disfigurement refers in an accident. Civil Cause No. 2888 of 2007, Potani, in the to changes In the case of v. Deerless Logistics Limited to be taken lightly was not something J stated as a person lives with the that and casually for the rest of her life. In the case of Charles no. 77 of 2014 a claimant wounds on the right shoulder Kl,000,000.00 was awarded of those awards was made on 16th June, 2017. fractures Mauzu v. Wild Batson and Prime Insurance Personal of tibia and fibula on both legs, had multiple sustained Injury Case and the face, and deep cut wounds on the left and right leg. He for pain and suffering, and K800,000.00 for deformity. The order as recently as 19th July, 2018 made an award of Kl, 450,000.00 This court, suffering distal and K 750,000.00 for deformity right leg and had been put in a Plaster to a claimant who had sustained of Paris and had difficulties for pain and of the a fracture to carry on manual Page 3 of 5 <Assessment Monica Benesi Order> Banda, Asst. Reg. v. Andrew Thawe & Prime Insurance Company limited Personal Injury 242 of 2016 Cause Number work after the injury. Personal Injury Cause No. 488 of 2014. This is the case of Chidoola v. Chilunga and Prime Insurance, In my view, an award of Kl, 500,000.00 to the claimant compensation here-in for the second award respectively. disfigurement and another of K 750,000.00 will be adequate for pain and suffering for the first award and Loss of Earnings and Loss of Earning Capacity immediately after the injury loss, for loss of earning capacity for the period a futuristic to earn and/or are also payable, ascertainable are paid for loss of earnings Damages to the date of judgment. based on the previous inability loss of earning in the business from. It would be unjust sector, referred normally supreme capacity of selling Damages known earnings marketability also applies different and discriminatory to as formal. Such inequality law, the Constitution, types of vegetables, to compensate no doubt abhors. on the job market after the assessment. such as the claimant for a person in this matter, for the claimant's loss of an extent It is my view that but with an ascertainable if such a remedy was only open to those in the who was income there­ before the law is what our celebrated The claimant motor vehicle. persons business was an average have a six-day of K60, 000.00. had a daily profit range of K2,000.00 to K3,000.00 at the time she was hit by the This means she was averaging K2, 500.00 as income every day. Normally, week, and four weeks make a month. Her monthly income was injured on 26th October, 2015. Consent 2017. Her loss of earnings from the injury is the period judgment on 17th was entered to the date K60, Her loss of income is therefore from the injury a period a complete for each of the 24 months which is Kl, 440,000.00. 24 months. spanning I award her that sum as The claimant November, of judgment, 000.00, compensation for loss of earnings arising out of the incident that led to her injury. award representing a loss of earning is entitled to a futuristic The claimant the known income of K60,000.00 income is K720,000.00. annual find the multiplier. Insurance sector forces slow them down or halts them completely, (average) For loss of earning As this court observed Co. Ltd, Personal to the mandatory are not amenable in the case of Chikondi Injury Case Number 553 of 2013, persons Namate v. Latif and Prime age. They can go on in the business or when death comes sooner in the informal until natural than expected. capacity. Based on the times 12 months, a month, as a multiplicand, capacity, the age of the claimant is used to Normally It would no doubt be the case for the claimant, acceptable it is widely that at the age of 55 human beings' slow down. productivity that at that age and beyond she would not be Page 4 of 5 Monica Benesi <Assessment Order> Banda, Asst. Reg. v. Andrew Thawe & Prime Insurance Company Limited Personal Injury Cause Number 242 of 2016 above middle ages, such that she could be around 10 years closer a number of residential age was not stated. areas happily I saw her in the assessment to tread through The claimant's expected vegetables. doubt slightly 55. Since a lump sum will be awarded, that may not require established I therefore her to walk a distance, which she can of course for example her touting for and selling She is no hearing. to the age of in a more settled business a stall in in renting to 3 years. the multiplicand invest investing markets award a sum ofK2, 160,000.00 there-from, as a compensatory to sell her vegetables I will reduce sum for loss of earning capacity. Special Damages The claimant for the police medical receipt asked for special report. damages These are special report I will award only K3, 000.00 for the medical damages report. The police number 2254167. that needed proof. shows it was paid for at the cost of K3,000.00 There was no proof on the as proved by the police under general itself. report report at Kl 0, 500.00, and K3, 000.00 Conclusion I am mindful that the claimant contributed injury. For that reason, The total award being K5, 853, 000.00, and I exercise successful, she is entitled 30% to the occurrence of the of the incident only to 70% of the total awards made in this 70% of that is K 4,095,000.00. my discretion to grant her the costs of the The claimant Lastly, claimant's ;order. has been largely assessment, which if not agreed shall be assessed by the registrar. Made this 23rd day of July, 2018. Austin Jesse Banda ASSISTANT REGISTRAR Page S of S <Assessment Order> Banda, Asst. Reg. Monica Benesi v. Andrew Thawe & Prime Insurance Company Limited Personal Injury Cause Number 242 of 2016